State Of Washington v. Clyde Johnson ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
,—.3
STATE OF WASHINGTON, j No. 70713-2-1
o
Respondent, ) DIVISION ONE
V.
u:
CLYDE JOHNSON, | UNPUBLISHED
O
Appellant. ] FILED: December 22. 2014
Cox, J. — "Whether the Fourth Amendment or article I, section 7 of the
Washington Constitution is in issue, a detaining officer must have 'a reasonable,
articulable suspicion, based on specific objective facts, that the person seized
has committed or is about to commit a crime.'"1 Courts analyze whether an
officer had a reasonable suspicion for a Terry stop under a totality of the
circumstances test.2 It is the State's burden to establish the validity of a Terry
stop.3 Because the State fails in its burden to establish, under the totality of the
circumstances of this case, that a reasonable, articulable suspicion existed to
support the Terry stop of Clyde Johnson, we reverse.
1 State v. Day. 161 Wash. 2d 889, 896, 168 P.3d 1265 (2007) (emphasis omitted)
(quoting State v. Duncan, 146 Wash. 2d 166, 172, 43 P.3d 513 (2002) (citing Terry v. Ohio,
392 U.S. 1, 21, 88 S. Ct. 1868, 20 L Ed. 2d 889 (1968))).
2 State v. Cardenas-Muratalla. 179 Wash. App. 307, 309, 319P.3d811 (2014).
3 Id.
No. 70713-2-1/2
The undisputed facts in the trial court's CrR 3.6 Findings of Fact and
Conclusions of Law, which are substantially unchallenged on appeal, state the
material facts. While on patrol in April 2013, a Seattle police detective received a
call from an FBI agent. The agent relayed to the detective that a paid confidential
informant working for the FBI had called to report an incident that had occurred at
18th Avenue and East Yesler Way in Seattle. The informant reported that he or
she had witnessed someone believed to be Johnson "embroiled in a 'heated but
not physical' argument with a female." The informant stated further "that during
that argument Johnson had 'flashed' a gun at the female." The informant also
provided a detailed description of Johnson and the clothing he was wearing.
The police detective had seen photos of Johnson before and knew he was
a convicted felon, prohibited from possessing firearms. The police detective and
his partner "immediately drove to the location of 18th and Yesler to investigate a
potential violentfelony crime and insure there was no ongoing threat to public
safety."
On arriving at the intersection, the detectives saw a man matching the
description the informant gave in front of a convenience store. They observed
that both the man and his clothing matched the physical description that the
informant had given. The detectives observed no one else in the area. The
detective who had previously seen photos of Johnson was "95% certain" that the
man was Johnson.
No. 70713-2-1/3
After making eye contact with one of the detectives, Johnson "looked
surprised, then turned and began briskly walking in the opposite direction from
the [detectives]."
The detectives pulled up to the place where Johnson had been standing
and both exited the patrol car. They identified themselves and ordered Johnson
to stop and return to their location. Johnson complied. The detectives then took
control of Johnson's arms and placed his hands on the hood of their patrol car.
Thereafter, they frisked him for weapons. They found "a 40 caliber
Berretta." The detectives then arrested him.
The State charged Johnson with unlawful possession of a firearm.
Johnson moved to suppress evidence of the gun, arguing that police lacked a
legitimate basis to conduct a Terry stop. The court denied the motion.
The parties agreed to a stipulated facts bench trial. The trial court found
Johnson guilty as charged.
Johnson appeals.
MOTION TO SUPPRESS
Johnson argues that the trial court erroneously denied his motion to
suppress evidence. Specifically, he contends that the detectives lacked
reasonable, articulable suspicion to believe that a crime had been committed or
was about to be committed. We agree.
Article I, section 7 of the Washington State Constitution and the Fourth
Amendment of the United States Constitution limit warrantless searches and
No. 70713-2-1/4
seizures.4 Courts generally presume that warrantless searches and seizures
violate both constitutions.5 But the State may rebut this presumption by showing
that a search falls within one of the "'narrowly and jealously drawn exceptions to
the warrant requirement.'"6
Brief investigatory stops are one exception to the warrant requirement.
Also known as Terry stops, under either the Fourth Amendment or article I,
section 7, officers may make a brief investigatory stop without a warrant.7
For a constitutional Terry stop, officers must have reasonable suspicion.8
This suspicion must be articulable and "'based on specific objective facts,
[indicating] that the person seized has committed or is about to commit a crime.'"9
Under both the Fourth Amendment and article 1, section 7, courts analyze
whether officers had reasonable suspicion using a totality of the circumstances
test.10 Under the Fourth Amendment, the test is objective.11 While under article
4 Day, 161 Wash. 2d at 893.
5 Id.
6Id at 894 (quoting State v. Stroud. 106Wn.2d 144, 147, 720 P.2d 436 (1986)).
7]d at 896.
8id at 895-96.
9]d at 896 (emphasis omitted) (quoting Duncan. 146 Wash. 2d at 172-74).
10 United States v. Arvizu. 534 U.S. 266, 273, 122 S. Ct. 744, 151 L Ed. 2d 740
(2002); Day, 161 Wash. 2d at 896.
11 Terry. 392 U.S. at 21-22.
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1, section 7, the totality of the circumstances includes the officer's subjective
beliefs.12
Relevant factors for the totality of the circumstances test can include "the
officer's training and experience, the location of the stop, the conduct of the
suspect. .. 'the purpose of the stop, the amount of physical intrusion upon the
suspect's liberty, and the length of time the suspect is detained.'"13 The totality of
the circumstances also includes "the seriousness of the offense and any threat to
public safety."14
Fleeing from police officers is another factor to consider in determining
reasonable suspicion.15 But in State v. Gatewood, the supreme court held that
the fact that a suspect looked surprised when he saw police officers, appeared to
try to hide something, and walked away, did not provide reasonable suspicion.16
The mere presence of a weapon does not, by itself, justify a Terry stop.17
But a report of threatened use of a weapon can provide reasonable suspicion.18
12
Day. 161 Wn.2dat896.
13 State v. Acrev. 148 Wash. 2d 738, 747, 64 P.3d 594 (2003) (quoting State v.
Williams. 102 Wash. 2d 733, 740, 689 P.2d 1065 (1984)).
14 Cardenas-Muratalla. 179 Wash. App. at 313.
15 State v. Gatewood. 163 Wash. 2d 534, 540, 182 P.3d 426 (2008).
16 id at 537-38, 40.
17 Cardenas-Muratalla, 179 Wash. App. at 313.
18 Id
5
No. 70713-2-1/6
Additionally, an officer may have reasonable suspicion based on
information received from another person.19 A tip provides reasonable suspicion
if, under the totality of the circumstances, it has sufficient "indicia of reliability."20
Sufficient indicia of reliability can be shown with evidence suggesting that the
informant is reliable or with police corroboration.21
For example, when an informant accurately predicts a suspect's future
behavior, it suggests the informant had reliable information.22 Eyewitness
knowledge is also more reliable.23
In order to corroborate a tip, officers must corroborate an informant's
knowledge of criminal activity.24 Corroborating a "description of a subject's
readily observable location and appearance" does not by itself provide sufficient
indicia of reliability.25
Courts consider information received from concerned citizens more
reliable than information received from paid informants.26 Thus, when a paid
19 Navarette v. California U.S. 134 S. Ct. 1683, 1688, 188 L. Ed. 2d 680
(2014).
20 State v. Marcum, 149 Wash. App. 894, 904, 205 P.3d 969 (2009).
21 ]d
22 Alabama v. White, 496 U.S. 325, 332, 110 S. Ct. 2412, 110 L. Ed. 2d 301
(1990).
23 Navarette. 134 S. Ct. at 1689.
24 Fla. v. J.L. 529 U.S. 266, 272, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000).
25 id
26 State v. Kennedy. 107 Wash. 2d 1, 8, 726 P.2d 445 (1986).
No. 70713-2-1/7
informant provides information, the information requires a higher showing of
reliability.27
To determine reliability, "[C]ourts will generally consider several factors,
primarily (1) whether the informant is reliable, (2) whether the information was
obtained in a reliable fashion, and (3) whether the officers can corroborate any
details of the informant's tip."28
Evidence seized in an invalid Terry stop must be suppressed.29
Trial courts make written findings of fact and conclusions of law after an
evidentiary hearing on a motion to suppress evidence.30 Appellate courts review
challenged findings of fact for substantial evidence, and determine whether the
findings support the conclusions of law.31 "Evidence is substantial when it is
enough 'to persuade a fair-minded person of the truth of the stated premise.'"32
Conclusions of law are reviewed de novo.33
Here, we begin our examination of the totality of the circumstances by
considering the indicia of reliability relating to the information provided to police
by the paid FBI informant. The court's undisputed factual findings provide in
27 id
28 State v. Saggers Wn. App. 332 P.3d 1034, 1038 (2014).
29 Day, 161 Wash. 2d at 894-95.
30 CrR 3.6.
31 State v. Garvin, 166 Wash. 2d 242, 249, 207 P.3d 1266 (2009).
32 id (quoting State v. Reid, 98 Wash. App. 152, 156, 988 P.2d 1038 (1999)).
33 State v. Ortega, 177 Wn.2d 116,122, 297 P.3d 57 (2013).
No. 70713-2-1/8
relevant part:
No information was provided by police regarding the identity
of the paid informant who furnished the information to law
enforcement, nor the informant's track record as a paid informant or
the informant's reliability. The informant's identity was not
disclosed for two reasons: 1) safety concerns on behalf of the
informant and 2) to allow for the continued use of this particular
informant, which requires that anonymity be preserved.'341
We do not take issue with law enforcement's decision not to disclose the
paid informant's identity to the court. That is a decision for law enforcement to
make. But that decision has consequences.
Our constitutional inquiry is whether sufficient indicia of reliability justify the
Terry stop in this case. It is undisputed that the police provided to the court no
information about the informant's reliability. It is also undisputed that the police
provided no information about the informant's track record as a paid informant.
Without either or both of these pieces of information, it is difficult to see how the
State could meet its burden to show sufficient indicia of reliability in this case.
Notwithstanding these undisputed findings of fact, the court concluded that
the informant's tip provided reasonable suspicion because it had sufficient indicia
of reliability. It stated in its conclusions of law that:
[T]here was corroborating information suggesting the informant's tip
to law enforcement was accurate. Specifically in this case, the
corroborating information was the location, identification of the
suspect, and the suspect's physical description and clothing
description. The implication is that the defendant was seen
wearing the jacket by the informant on the day in question as
relayed to police.[35]
34 Clerk's Papers at 50.
35 Id. at 52.
8
No. 70713-2-1/9
The court concluded that the tip showed sufficient indicia of reliability
because it satisfied two factors of the test. First, the court believed it satisfied the
factor of "whether the officers can corroborate any details of the informant's tip."36
Second, the court concluded the tip was reliable because it suggested that "the
informer's information was obtained in a reliable fashion."37 We disagree with
both conclusions.
The court's first conclusion is erroneous because it relies on an overbroad
statement of the law. It is incorrect that corroborating "any details of the
informant's tip" provides indicia of reliability.
According to the United States Supreme Court in Florida v. J.L., merely
corroborating a suspect's location and description does not provide sufficient
indicia of reliability for reasonable suspicion.38 In that case, an anonymous caller
reported that a young man at a bus stop was carrying a gun.39 Officers went to
the bus stop, found a young man who matched the tip's description, frisked him,
and found a gun.40 The officers did not observe any suspicious or threatening
behavior before frisking J.L.41
36 Jd (quoting State v. Lee, 147 Wash. App. 912, 918, 199 P.3d 445 (2008)).
37 iMarcum, 149 Wash. App. at 904).
38 529 U.S. 266, 271-72, 120 S. Ct. 1375, 146 L Ed. 2d 254 (2000).
39 id at 268.
40 id
41 id at 270-71.
9
No. 70713-2-1/10
The Supreme Court held that the officers lacked reasonable suspicion
because the anonymous tip in JJ_. lacked sufficient indicia of reliability.42 While
the officers were able to corroborate J.L.'s location and appearance, this was
insufficient to provide indicia of reliability. The court held that corroboration must
show that "a tip [is] reliable in its assertion of illegality, not just in its tendency to
identify a determinate person."43
Thus, it sweeps too broadly to say that corroborating "any details of the
informant's tip" provides indicia of reliability. Instead, under jLL, officers must
corroborate details indicating a crime.
Here, the detectives were able to corroborate only Johnson's identity,
location, and description. Just as in JLL, this showed that the tip was reliable in
"identifying] a determinate person"—Johnson. But when the detectives arrived
on the scene, they observed nothing that corroborated that a crime had been or
was about to be committed. They did not observe anyone else at the scene.
They did not observe that Johnson had a firearm until they stopped and frisked
him. And there was nothing else that allowed the detectives to corroborate the
tip. Accordingly, this record does not support the determination by the trial court
that this corroboration provided indicia of reliability.
The trial court also concluded that the detectives' corroboration showed
"that the informer's information was obtained in a reliable fashion." We disagree.
42 id
43 Id. at 272.
10
No. 70713-2-1/11
In reaching this conclusion, the court relied on the fact that the detectives
corroborated Johnson's description and this implied "that the defendant was seen
wearing the jacket by the informant on the day in question as relayed to police."
But this fails to show that the informant reliably obtained the information.
The United States Supreme Court has held that when a tip accurately
predicts a suspect's future movements, this shows that the informant reliably
obtained the information.44 Predicting future movements suggests "familiarity
with [a] person's affairs" or insider knowledge.45
But here, as in JJL, the tip did not provide any predictive information.
Rather, it merely gave Johnson's description and location. Thus, the
corroborated details failed to establish that the informant reliably obtained the
information.
We acknowledge that this case does differ somewhat from JJ_. In that
case, the caller did not disclose how he knew J.L. had a gun.46 In the present
case, the informant claimed to be an eyewitness to this event. And courts
consider eyewitness information more reliable.47 But being an eyewitness does
not necessarily suggest the same level of reliability that predicting future
movements does. While eyewitness information is more reliable than non-
44 White. 496 U.S. at 332.
45 J.L, 529 U.S. at 271.
46 id
47 Navarette, 134 S. Ct. at 1689.
11
No. 70713-2-1/12
eyewitness information, it lacks the suggestion of familiarity or insider knowledge
that predictive information provides.
This case is closer to this court's recent decision in State v. Cardenas-
Muratalla.48 In that case, officers received a 911 call reporting that a man had a
gun in a high crime area of downtown Seattle.49 The 911 caller reported only that
the man had a gun, and stated that while the man had shown the caller the gun,
he had not threatened the caller.50
The officers responded and saw Jose Cardenas-Muratalla, who matched
the report's description.51 One officer testified that Cardenas-Muratalla looked
surprised when he saw the officer.52 Another officer testified that the only
suspicious behavior she saw was when Cardenas-Muratalla walked away from
the officers, and did not obey an order to stop.53
In that case, this court held that there was no reasonable suspicion to stop
Cardenas-Muratalla.54
This case resembles Cardenas-Muratalla. In both cases, officers received
a tip that the suspect was carrying a gun. Officers responded and saw a suspect
48179 Wash. App. 307, 319 P.3d 811 (2014).
49 id at 310.
50 id at 317.
51 id at 310.
52 id
53 id at 310-11.
54 id at 317.
12
No. 70713-2-1/13
who matched the tip's description. The suspect looked surprised and walked
away when he saw the officers. The Terry stop followed.
One factor that distinguishes the present case is that Johnson reportedly
engaged in criminal activity. In Cardenas-Muratalla. the suspect only showed his
gun to the caller, in a way that the caller specifically said was not a threat.55
Thus, the court held that the caller did not report a crime.56
In contrast, in this case, Johnson allegedly flashed his gun during a
heated argument with a female. Depending on the circumstances, doing so
could constitute a form of assault, a serious crime.
The seriousness of the offense is one factor to consider in the totality of
the circumstances.57 Thus, the fact that Johnson reportedly "flashed" a gun is
important to the analysis.
But the present case also has another distinguishing factor. In Cardenas-
Muratalla, the tip came from a 911 caller.58 In this case, a paid informant
supplied the information.
Paid informants are less credible than citizen informants.59 Courts give
more weight to reports from "ordinary citizens who have been the victim of or
55 Id at 317.
56 Jd at 316-17.
57 id at 313.
58 id at 310.
59 See, e.g. Lee. 147 Wash. App. at 919: Kennedy, 107Wn.2dat8.
13
No. 70713-2-1/14
witness to criminal conduct" than they do to "information from compensated
informants from the criminal subculture."60
A citizen witness generally "acts with an intent to aid the police in law
enforcement because of his concern for society or for his own safety."61 In
contrast, a paid informant's motivations may be unclear. An informant may be
motivated by payment, a desire to curry favor with law enforcement, or a number
of other reasons.
Accordingly, the fact that the tip about Johnson came from a paid FBI
informant makes it less reliable.
In sum, we conclude that the informant's tip did not have sufficient indicia
of reliability to provide reasonable suspicion. The detectives provided no
information about the informant's reliability or track record, and the detectives
were able to corroborate only innocuous details. While the informant claimed to
be an eyewitness, he was also a paid informant. Under these circumstances, the
tip lacked sufficient indicia of reliability to provide reasonable suspicion for the
detectives to stop Johnson.
The remaining circumstances in this case also do not provide for
reasonable suspicion. Under the totality of the circumstances, the fact that
Johnson looked surprised when he saw the officers and walked away, and that
he was reported to have "flashed" a gun during an argument did not create
reasonable suspicion. Thus, the detectives lacked a reasonable, articulable
60
Lee. 147 Wash. App. at 919.
61 id (quoting 2 Wayne R. LaFave, Search and Seizure § 3.4(a), at 208 (3d
ed.1996)).
14
No. 70713-2-1/15
suspicion that Johnson had committed or was about to commit a crime.
Accordingly, they had no basis to conduct a valid Terry stop.
The State argues that the detectives did have reasonable suspicion to
stop Johnson. More specifically, it argues that the informant in this case was
reliable because one of the detectives had met him, that the seriousness of the
alleged offense provided reasonable suspicion, and that under a recent Supreme
Court decision the informant's tip was reliable. We disagree with each of these
arguments.
First, the State argues that the informant in the present case was more
reliable than the informants in cases like JJ_. and Cardenas-Muratalla.
Specifically, the State argues that one of the detectives had met the informant
before and this made the informant reliable.
But the court's written findings of fact state that:
[n]o information was provided by police regarding the identity of the
paid informant who furnished the information to law enforcement,
nor the informant's track record as a paid informant or the
informant's reliability.1621
And the court later concluded that "no evidence was presented regarding the
reliability of the informant."
With this argument, the State implicitly challenges these findings on
appeal. But the State did not challenge the findings by a cross-appeal, and
unchallenged findings are verities on appeal.63 Because the unchallenged
62 Clerk's Papers at 50.
63 Campbell v. Emp't Sec. Dep't, 180 Wash. 2d 566, 573, 326 P.3d 713 (2014).
15
No. 70713-2-1/16
findings show that no information was presented about the informant's reliability,
the State's argument that the informant was reliable fails.
Further, the State's argument is unpersuasive. In Cardenas-Muratalla. a
911 caller reported the information. In the present case, a paid informant
reported the information. As we stated earlier in this opinion, paid informants are
less credible, not more credible, than citizen informants.64 Thus, the State fails
to establish the reliability of the informant in this case.
The State also argues that the officers in this case had reasonable
suspicion because of the seriousness of Johnson's reported offense. The State
relies mainly on State v. Franklin for this argument.65 In that case, a citizen
approached a police officer and told him that he had seen a man with a gun in a
nearby public bathroom.66 The citizen did not allege that the man was displaying
the gun threateningly.67
The court in Franklin decided that the "potential danger to the public posed
by an armed individual" and the citizen's information gave the officer reasonable
suspicion to stop the man.68 But Franklin was decided in 1985, 15 years before
J.L.
64 Lee. 147 Wash. App. at 919.
65 41 Wn. App 409, 704 P.2d 666 (1985).
66 id at 410.
67 id
68 id at 413.
16
No. 70713-2-1/17
Under JJ_., a report of possession of a gun does not, by itself, create
reasonable suspicion.69 Thus, the State's reliance on Franklin is misplaced.
As we discussed earlier, the seriousness of the reported offense is one
factor to consider in the totality of the circumstances.70 And a report of a possible
assault is a serious offense. But the serious nature of an offense is merely one
factor that courts consider in evaluating the totality of the circumstances of a
case. And under the totality of the circumstances, it is insufficient to provide
reasonable suspicion in this case, given the tip's lack of sufficient indicia of
reliability.
The State also argues that a recent decision by the United States
Supreme Court eliminates the need for officers to corroborate an informant's tip
by observing predicted behavior or criminal activity. In Navarette v. California,
the Court held that a 911 caller's report provided reasonable suspicion for a
stop.71 In that case, the caller said that a truck had run her off the road and gave
a description of the truck and its license plate.72 Officers stopped a truck
matching the description.73
69 J.L, 529 U.S. at 271-73.
70 Cardenas-Muratalla. 179 Wash. App. at 313.
71 U.S. 134 S. Ct. 1683, 188 L. Ed. 2d 680 (2014).
72 Id at 1686-87.
73 ]d at 1687.
17
No. 70713-2-1/18
The Court held that the report provided reasonable suspicion to stop the
truck for several reasons. First, the caller was an eyewitness.74 The caller also
contemporaneously reported the incident.75 This made her report similar to a
present sense impression or an excited utterance, which evidence law treats as
reliable.76 Further, the report was made on the 911 system.77 The court held
that technological advances have made 911 calls more trustworthy because the
911 system can verify callers' information and geographically locate them.78
Under these circumstances, the court held that officers had reasonable suspicion
to stop the truck.79
The State argues that Navarette establishes that an anonymous caller no
longer needs to give more than an accurate description of a suspect in order to
create reasonable suspicion. But Navarette is not analogous to this case.
In Navarette, the reliability of the tip supported reasonable suspicion. As
discussed above, three factors supported reliability in that case: the caller was an
eyewitness, the report was contemporaneous, and the call was made through
911. Only the first ofthose factors is present in Johnson's case—the informant
here also claimed to be an eyewitness.
74 id at 1689.
76 id
76 id
77 id
78 id at 1689-90.
79 Id. at 1692.
18
No. 70713-2-1/19
Additionally, Johnson challenges on appeal the finding below that the
informant made a contemporaneous report. The court found that the informant
had "just witnessed" the incident. But substantial evidence does not support the
finding.
One detective testified that he received a call:
[fjrom an FBI agent who told me that he received a phone call from
a paid informant that said that there was a disturbance between a
male and a female at 18th and Yesler and that there was some
arguing going back and forth and that at some point during this
argument that the male involved flashed a handgun.[80]
The detective's partner testified that:
[the detective] said that he was speaking to an FBI agent on the
telephone who was passing along information that that agent had
received from a CI stating that a subject described as a black male
in his 30s, about 5'8", short hair, wearing a blue North Face jacket,
had apparently been in sort of verbal argument or disturbance in
the area of 18th and Yesler.[81]
Thus, neither detective testified that the informant contemporaneously
reported the incident to the FBI agent.
We have found nothing in this record to substantiate that the informant
contemporaneously reported what the informant saw to the FBI agent. The trial
court found that Johnson was wearing the clothes that the informant described,
and was at the location the informant described. The court concluded that this
implied "that the defendant was seen wearing the jacket by the informant on the
day in question as relayed to police." But an implication that the informant
80 Report of Proceedings (July 29, 2013) at 16.
81 id at 37-38.
19
No. 70713-2-1/20
witnessed Johnson on that day is insufficient to show that the informant made a
contemporaneous report to the FBI agent. Accordingly, substantial evidence
does not support the finding that the informant had "just witnessed" the incident.
Finally, as discussed previously, the informant in this case was a paid
informant, not a concerned citizen, making the informant's tip less reliable than
the tip in Navarette.
For these reasons, we hold that the police lacked a reasonable, articulable
suspicion that Johnson had committed or was about to commit a crime.
Accordingly, the Terry stop was not valid. The weapon the police found must be
suppressed.
We reverse the judgment and sentence.
6ut^>
WE CONCUR:
l^ck^ \
20